ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (C.A. No. 79-0338)
Before Adams, Rosenn and Higginbotham, Circuit Judges.
We are once again asked to define the rights of handicapped school children and the obligations of school districts, as well as the roles of courts and agencies, under the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq. (hereinafter EAHCA).*fn1 First, however, it is necessary to decide if an appealable order exists. If so, we must ascertain whether the plaintiffs' claim is timely filed. Once these threshold requirements are satisfied, we are required to determine whether clean intermittent catheterization falls within the statutory definition of "related services" that a school district must provide a handicapped child.
Plaintiff-appellee, Amber Tokarcik, is currently a fourth-grade student in the Forest Hills School District in Cambria County. She was born with spina-bifida, a congenital physical defect, and is paralyzed from the waist down. Because Amber's condition prevents her from emptying her bladder voluntarily, intermittent catheterization is necessary approximately every four hours. In 1976, when Amber entered kindergarten in the regular public school program, her parents, also appellees in this suit, requested the school personnel to perform the necessary catheterization once a day. The Forest Hills School District refused to provide the service. Consequently, some member of Amber's family has gone to the school each day to catheterize. Amber has no mental deficiencies and her educational performance is normal for a child her age.
Prior to the 1977-78 school year, Amber's parents and the school staff attempted to agree upon an appropriate individualized educational program (IEP) for Amber in conformity with the EAHCA, see 20 U.S.C. § 1401(19). Consensus appears to have been reached concerning special transportation to and from school, and an adaptive physical education program. But the continuing impasse over the provision of the clean intermittent catheterization (CIC) services led Amber's parents to request a due process hearing, as provided in the Act. 20 U.S.C. § 1415(b)(2). At the hearing, the school district contended that Pennsylvania law does not require school nurses to catheterize students. Thus, unless a member of Amber's family came to the school to perform the CIC, the district would have to provide Amber with a "special educational placement," 20 U.S.C. § 1401(16), most likely at her home with a tutor. In contrast, Amber's parents presented the testimony of Dr. Lynch, Director of the Bureau of Children's Services in the Pennsylvania Department of Health, who maintained that catheterization is no longer considered a surgical procedure and that the general duties of school nurses would include CIC. The local hearing examiner declared that the school district was not legally required to perform the catheterization services. On appeal, Dr. Kline, then Secretary of Education, upheld the findings and opinion of the local examiner in a decision dated December 22, 1978.
Having exhausted their administrative remedies, the Tokarciks brought suit in the district court against the Forest Hills School District, its secretary and superintendent, the Pennsylvania Department of Education and its Secretary, Dr. Scanlon (hereinafter collectively appellants or school authorities), alleging violations of 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the EAHCA, 20 U.S.C. § 1401 et seq. They requested provision of catheterization for Amber and compensatory and punitive damages. In a memorandum opinion and order of May 19, 1980, the district judge dismissed the § 1983 and Rehabilitation Act claims against the Department of Education as well as the § 1983 damages claim against Secretary Scanlon. No appeal was taken from that order, and the parties proceeded with cross motions for summary judgment on the EAHCA claims.*fn2
The trial judge, relying exclusively on the administrative record and an additional set of stipulations, granted plaintiffs' motion for summary judgment. The court directed the school authorities to provide CIC services for Amber as long as she remains a student in the Forest Hills district and is in need of such services. In reaching this result, the district court first held that the court action contemplated by the EAHCA was clearly in the nature of a de novo proceeding and not an appeal from an agency decision. Although the complaint had not been filed within the 30 day statutory limit for appeals from administrative determinations, the district court considered that the suit was nevertheless timely under either the two-year or six-year limitations statutes which govern virtually all actions in Pennsylvania.
On the merits, the district judge believed that Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980), controlled the present case. Crediting the Tokarcik's expert Dr. Lynch, who testified that school nurses were qualified to perform catheterization, the court concluded that the provision of CIC would require only a few minutes a day and at most a minimal expenditure of funds. Further, the alternatives to providing CIC-either placement in a special class for the handicapped or at-home instruction-were much more expensive and would violate the mainstreaming principles embodied in the EAHCA.*fn3 The court thus held that CIC fell within the meaning of a "related service" under the Act, specifically either a "supportive service," as defined in § 1401(17), or a "school health service," as explained in 34 C.F.R. 300.13(a). The trial judge reserved the question of damages and attorney's fees for a later date, and directed further briefing on those aspects of the case by the parties. We affirm.
Before reaching the merits of the case, two hurdles to our ability to hear the present appeal must be surmounted. First, does a final order exist and, if not, is there an interlocutory order over which we can exercise jurisdiction? Both parties initially maintained that the district court's decision of October 31, 1980 was a final order, appealable under 28 U.S.C. § 1291. Scrutiny of the record, however, reveals that the district court directed the appellants to provide Amber Tokarcik with CIC but did not rule on plaintiffs' claims for damages and attorney's fees. App. 52. Thus, the decision of the district court did not dispose of the entire case, and consequently the judgment was not final within the meaning of § 1291. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976) (a grant of partial summary judgment limited to the issue of liability is by its terms interlocutory and not final within meaning of § 1291); Fireman's Fund Insurance Co. v. Joseph J. Biafore, Inc., 526 F.2d 170 (3d Cir. 1975) (district court order which did not resolve damages claim not appealable under 28 U.S.C. § 1291).
Although litigation with respect to the entire judicial unit has not terminated, Congress, since 1891, has excepted from the finality rule a group of interlocutory orders of an equitable nature. Now codified at 28 U.S.C. § 1292(a), subsection (1) permits appeal from orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to modify or dissolve injunctions...." Because the district court, in partially granting plaintiffs' motion for summary judgment, ordered the school district to provide CIC for the duration of Amber's special education program, we hold that we have appellate jurisdiction to review this interlocutory decision under 28 U.S.C. § 1292(a)(1). An injunction that does not cover all the legal relief a plaintiff seeks is nevertheless a coercive order from which Congress has granted litigants a right to immediate appellate review. See N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 104 (3d Cir. 1979).
Recently, the Supreme Court reiterated that "we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of "permitting litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.' " See Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S. Ct. 993, 996, 67 L. Ed. 2d 59 (1981) quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S. Ct. 249, 252, 99 L. Ed. 233 (1955). Yet this language neither alters the congressional directive and policy nor undermines the result we reach here. Carson itself held that an interlocutory order of a district court denying a joint motion by parties in a Title VII suit to enter a consent decree containing injunctive relief was an appealable order. In requiring that a litigant demonstrate that an interlocutory order might have a "serious, perhaps irreparable, consequence" and could be challenged only by immediate appeal, the Supreme Court did not cut back the statutory scope of § 1292(a)(1). Rather, the Court sought to distinguish pretrial procedural orders that had the practical effect of refusing an injunction and could be effectually challenged only at that moment, from procedural orders that did not pose irreparable consequences and could be effectively reviewed on appeal from final judgment. Compare Carson, supra (refusal to enter consent decree containing injunctive relief appealable under § 1292(a)(1)) with Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S. Ct. 193, 17 L. Ed. 2d 23 (1966) (denial of motion for summary judgment requesting permanent but no preliminary injunctive relief not appealable under § 1292). When interlocutory orders do not irrevocably affect the merits of the controversy, the Court, in fear of bringing a flood of pretrial orders within the § 1292 exception, has been reluctant to compromise the congressional policy against piecemeal appeals. See Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 482, 98 S. Ct. 2451, 2454, 57 L. Ed. 2d 364 (1978) (order denying class certification held not appealable under § 1292).
Notwithstanding the Carson qualification that interlocutory orders pose "serious perhaps irreparable consequences," the appealability of a routine interlocutory injunctive order remains unquestioned.*fn4 Here, the district court directed straightforward injunctive relief which went to the merits of the dispute. And defendants claim irreparable harm insofar as this additional responsibility to furnish what they regard as medical services will diminish their ability to fulfill what is more appropriately within their domain and expertise-the education needs of handicapped children. Consequently, appellate jurisdiction in conformity with 28 U.S.C. § 1292(a)(1) exists.
Appellants interpose a second obstacle, a statute of limitations defense, to our consideration of the merits of the dispute. The school authorities contend that the district court erred in applying either a two-year or six-year statute of limitations period to the plaintiff's judicial cause of action under the EAHCA. They argue that under the Act aggrieved parties can seek judicial redress only from decisions of a state educational agency.*fn5 20 U.S.C. § 1415(e). Accordingly, appellants claim that the plaintiffs' action can be construed in only two ways: as an appeal from an administrative determination or as an appellate action "in the nature of a de novo proceeding." In either case, the school authorities maintain, the relevant state limitations period, which should likewise apply in federal court, is 30 days. See 42 Pa.Cons.Stat.Ann., § 5571(b) (Purdon Supp.1981); cf. 47 Pa.Stat.Ann., § 4-464 (Purdon Supp.1980-81); 75 Pa.Stat.Ann., § 1550(a) (Purdon Supp.1980-81); 42 Pa.Cons.Stat.Ann., § 5105 (Purdon Supp.1981). Because plaintiffs initiated suit in the district court on March 14, 1979, nearly 90 days after Secretary Kline issued the order that they challenge, the appellants claim that the action is barred as untimely filed.
No general statute of limitations governs litigation in federal courts. Moreover, Congress, in creating a federal right, often does not provide a time limit for enforcement of that right. The limitations period for commencing actions under federal legislation has consequently been left largely to judicial implication. From early on it was assumed that in the absence of an explicit congressional declaration, the Rules of Decision Act*fn6 mandated the application of the statute of limitations of the forum state. See M'Cluny v. Silliman, 28 U.S. (3 Pet.) 270, 7 L. Ed. 676 (1830); Campbell v. Haverhill, 155 U.S. 610, 15 S. Ct. 217, 39 L. Ed. 280 (1895). To effectuate the presumed congressional intent "that the remedy (for federal rights) should be enforced in the manner common to like actions within the same jurisdiction," 155 U.S. at 616, 15 S. Ct. at 219, federal courts were required to characterize the essential nature of the federal claim in terms of the format which the various state statutes of limitations establish. See Davis v. United States Steel Supply, Etc., 581 F.2d 335, 337 (3d Cir. 1978); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc). But resort to state statutes was not to be mechanical, in disregard of the impact of local laws on federal objectives. In the words of Justice Frankfurter, "The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles." Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S. Ct. 582, 584, 90 L. Ed. 743 (1946).
The present case involves such a federally-created right accompanied by congressional silence regarding the limitations period. Nor does the legislative history evince any specific consideration of a time period for filing a civil action under 20 U.S.C. § 1415(e)(2). See S.Rep.No.94-455 (Conference Committee) 94th Cong., 1st Sess. 50, reprinted in (1975) U.S.Code Cong. & Admin.News 1480, 1503.*fn7 Further, it is difficult to find a state analogue which would enable the Court to characterize the nature of the federal claim. The statute speaks of "the right to bring a civil action with respect to the complaint presented pursuant to this section." 20 U.S.C. § 1415(e) (2). The legislative history specifically indicates that the House Bill's provision for appeals from the determinations of the state educational agency was dropped and replaced with a conference substitute creating a right to bring a civil action-the present statutory language. See 121 Cong.Rec. 36635-36 (1975) (Joint Explanatory Statement of the Committee of Conference). In addition, the EAHCA provides that district courts shall have jurisdiction of such actions without regard to the amount in controversy, 1415(e)(4), and shall grant such relief as the court determines is appropriate. 20 U.S.C. §§ 1415(e) (2) and (4).
Notwithstanding similarities between this federal right and a cause of action under, for example, 42 U.S.C. § 1983, the Education Act also requires exhaustion of state agency proceedings. See 20 U.S.C. § 1415(e)(2); Riley v. Ambach, -- - F.2d -- , No. 80-7600 (2d Cir., May 19, 1981). Although parties may supplement the administrative record and the court is to make an independent decision based on the preponderance of the evidence, the exhaustion criterion arguably lends to the proceedings the character of a de novo appeal rather than an original action. Yet the existence of state administrative machinery need not deprive a later federal court action of its independent nature. Both Title VI and the Rehabilitation Act, whose protection significantly overlaps with that of the EAHCA, embody statutory schemes which require exhaustion of administrative remedies. See 45 C.F.R. §§ 80.6-80.10. The implied causes of action which courts have recognized under those statutes, however, have not been characterized as appellate in nature.*fn8
Apparently, only one other court has undertaken to define the statute of limitations for the federal cause of action at issue here. In Monahan v. State of Nebraska, 491 F. Supp. 1074 (D.Neb.1980), aff'd in part, rev'd and remanded in part on other grounds, 645 F.2d 592 (8th Cir. 1981), the school district argued that a state statute requiring persons to file for judicial review of orders of the state commissioner of education within 30 days, should likewise control federal claims brought under the Education for All Handicapped Children Act, 20 U.S.C. § 1415(e)(2). The court, however, cautioned that once a state cause of action similar to the federal claim is found to exist, a court must examine whether the nature of the proceedings provided under the respective state and federal causes of action are equivalent. There, substantial disparities existed between the state and federal schemes. The state procedure involved restricted court review, limited factually to the administrative record, and limited legally to an arbitrary and capricious scope of review. In contrast, under the federal statute, parties could adduce new evidence and the reviewing court was not bound under a clearly erroneous standard to the determination of the state agency. 20 U.S.C. § 1415(e)(2). Such differences indicated that the policy considerations relevant to setting the limitation period for the state suit had no necessary application to the federal cause of action. As a result, the court believed that the 30 day state limitations period would not fully effectuate the federal policies underlying the EAHCA, and concluded that the plaintiff's claim was not time barred. 491 F. Supp. at 1084-85.
We find the reasoning of the Monahan court persuasive. Admittedly, the EAHCA is an integrated federal and state statutory scheme, and deference to state plans and procedures is often warranted. See 20 U.S.C. § 1412; Kruelle v. New Castle County School District, 642 F.2d 687 (3d Cir. 1981); Note, Enforcing the Right to an "Appropriate" Education: The Education for All Handicapped Children Act of 1975, 92 Harv.L.Rev. 1103 (1979). But the procedural protections embodied in the Act indicate that adoption of a 30 day state appeals statute to govern the filing of a federal cause of action in a federal district court, the situation here, would be inappropriate. In explicitly providing in § 1415(e)(2) that any aggrieved party has a right to bring a civil action in which the reviewing court may hear evidence not contained in the administrative record and must reach an independent decision based on a preponderance of the evidence, Congress clearly contemplated more than the customary appeal from an administrative decision.*fn10 Moreover, the statute permits a court to "grant such relief as the court determines is appropriate," a far broader remedial power than is customarily conferred on judicial bodies reviewing agency decisions. 20 U.S.C. § 1415(e)(2). Precisely because a judicial suit under the Education Act is practically indistinguishable from the usual civil action in which issues are tried de novo, the state limitations statute controlling administrative appeals to state courts that appellants urge us to adopt is neither an analogous nor appropriate reference point.*fn11 Cf. Ladson v. Board of Education of the Dist. of Columbia Gov't., 3 Educ. Handicapped Law Report, (hereinafter EHLR) 551:188, 189 n.4; Monahan, supra, 491 F. Supp. at 1084. Significantly, in confining the appeals period to 30 days, the suggested state statute would undercut in several respects the substantive and procedural protections the Congress intended to supply when enacting the federal law.
First, as the court in Monahan explained, when judicial review is limited to examination of the administrative record-as it is in the state statute invoked here*fn12 -a plaintiff can adequately prepare his case within 30 days. No investigation into evidence outside the administrative proceedings is necessary or indeed permitted. See Monahan, supra at 1085. Because Section 1415(e)(2) allows the presentation of additional evidence, different time considerations, accommodating the needs of parties to investigate and prepare, govern the limitations period for an action brought under the federal education statute.*fn13 In a recent EAHCA case before this Court the parent's principal witness in district court was a consultant for the school district who had not previously testified. While the state reviewing officer had denied the parent's request to reopen the record to permit the expert's testimony, the district judge relied extensively on this additional evidence in reaching his decision. See Kruelle v. New Castle County School District, supra at 690.
Second, in providing for independent court review, Congress apparently intended to create an external check to guard against possible procedural deficiencies or institutional pressures inherent in the educational administrative system.*fn14 Rather than affirming, reversing or remanding an agency decision, courts are required to decide upon an educational placement which conforms to their understanding of the aims and terms of the Education Act. Anderson v. Thompson, 495 F. Supp. 1256, 1260-61 (E.D.Wis.1980) (role intended for court in reviewing state administrative decision is to exercise independent judgment in arriving at an appropriate placement). A limited appeals period which functions to restrict the range of evidence and issues that reviewing courts could consider would effectively dilute the independent position of the district courts envisaged by Congress. Indeed, the statutory language of Section 1415(e)(2), which permits federal or state litigation by those "aggrieved by the findings and decision" in the state administrative procedure, encompasses by its very language more than assignments of error to the findings of fact or conclusions of law made by hearing officers. As one court has aptly noted:
One may be as aggrieved by a correct interpretation of extant law or administrative authority as by unsupported findings of fact or erroneous legal analysis. It would be anomalous if, under a federal statute which contemplated recourse to the federal courts to examine state administrative decisions alleged not to fulfill the promise of a federally funded program, a deficient state administrative procedure could preclude review, especially when the gravamen of the complaint is precisely that deficiency.
Hark v. School Dist. of Philadelphia, 505 F. Supp. 727, 730-31 (E.D.Pa.1980).
In Hark, the parents placed their child in an out-of-state school, which the state hearing procedure later determined to be appropriate. Although the question of reimbursement was raised by the parents, the matter was never conclusively resolved. The parents, believing they had received a favorable ruling from the hearing officer, did not appeal to the Secretary of Education or the courts. Only when attempts to secure reimbursement failed, and the state indicated that no reimbursement procedure existed, did the parents later bring suit-210 days after the final decision by the hearing officer. The court, reasoning that the parents neither assigned error to the rulings in the administrative proceedings nor appealed from the findings, concluded that "section 1415(e)(2) not only provides for a kind of appellate jurisdiction, but also for review whenever the plaintiff, having exhausted all applicable administrative remedies, remains "aggrieved.' " Id. at 731. As Hark illustrates, the court's duty to insure that the state's due process mechanism is fulfilling the Act's guarantee of a free appropriate education would be ill-served by a 30 day appeal period. Frequently, systemic deficiencies or placement problems will surface only with the passage of time.*fn15
Third, the thirty day limitation period which appellants insist is controlling here would frustrate the statutory policy of cooperative parental and school involvement in placement determinations. One of the Act's important goals, which the procedural safeguards are designed to enhance, is to prevent inappropriate educational placements arising from erroneous evaluations of a child's particular needs. See Monahan, supra at 1085; Lora v. Board of Education of City of New York, 456 F. Supp. 1211, 1227 (E.D.N.Y. 1970) aff'd in part and vac. and remanded in part, 623 F.2d 248 (2d Cir. 1980). This purpose would not be furthered if parents were given only thirty days within which to evaluate and appeal the state secretary's decision. Moreover, the parental complaint mechanism set forth in the statutes intentionally contemplates the enforcement of the statutory rights provided by lay persons who are peculiarly subject to being unfairly penalized by a brief 30 day time bar.*fn16
Much like Hark, the case of Pratt v. Board of Education of Frederick City, 501 F. Supp. 232 (D.Md.1980), highlights the need for an approach more flexible than that resulting from a 30 day appeal period. In Pratt, the child's mother and school authorities assented to the State Hearing Review Board's determination of an appropriate individualized educational program (IEP). No appeal was taken to any court. Then, during the summer, as individual provisions of the IEP were being hammered out, the parties reached an impasse as a result of a ruling on disciplinary provisions by the school board. Only at that point did the mother institute suit in the federal court. Had the claim been regarded as an appeal, the child would have effectively been denied the right to an appropriate educational program; but the court accorded no significance to the delay between the initial agency decision and the court action. Rather, maintaining that the case arose under either the Education Act, 20 U.S.C. § 1401 et seq., or the Rehabilitation Act, 29 U.S.C. § 794, the court premised jurisdiction on 28 U.S.C. § 1331(a). The judge stated that jurisdiction "may also exist pursuant to 20 U.S.C. ... § 1415(e)(2)," id. at 234, but found it unnecessary to rely on that jurisdictional base. Yet, the possibility of federal question ...